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2006 DIGILAW 1269 (DEL)

NOOR AHMED v. RUQAIYA BEGUM

2006-08-01

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) THE respondent landlord filed an eviction petition under Section 14 (1) (e) read with Section 25b of the Delhi Rent Control Act, 1958 on the ground of bona fide requirement. It was stated in the eviction petition that two rooms and one small open courtyard between the two rooms situated on the ground floor of property No. 4927, Gali Darzian, Bara Hindu Rao, Delhi was let out to Mohd. Ahmed, late father of the petitioners. The tenancy was originally created by one Hafiz Abdul Aziz, who was the owner and father of the respondent. The premises were let out for residential purpose. Shri Aziz passed away on 29. 06. 1943 and thereafter the property devolved upon his four legal representatives, which included the petitioner, her two brothers and one sister. The property was stated to be partitioned among the legal representatives by the registered partition deed dated 13. 07. 1987 in terms whereof the tenanted property along with one room in open terrace situated on the first floor and one room on the second floor fell to the share of the respondent. The family of the respondent comprised of herself, her husband, three sons and two daughters. The respondent was residing in a portion of house No. 7832 situated at New Basti, Bara Hindu Rao, Delhi which was jointly owned by the husband of the respondent and his brother Shri Basheeruddin. The respondent was stated to be residing along with her family members in one room, while the mother-in-law of the respondent and the elder brother of her husband were residing in the store. Thus, the respondent claimed bona fide requirement of the tenanted premises. ( 2 ) THE petitioners entered appearance and their application for leave to defend the suit was granted with consent of learned counsel for the parties and the petition was set down for trial. The petitioners disputed the ownership of the respondent. It was stated that after the death of the original owner, Shri Aziz, the tenanted property fell to the share of Ms. Amna, mother of the respondent apart from the respondent, her two brothers and the sister. The respondent, thus, had 7/48 share in the property. The respondent is alleged to have migrated to Pakistan and the share of the respondent in terms of an order dated 13. 08. Amna, mother of the respondent apart from the respondent, her two brothers and the sister. The respondent, thus, had 7/48 share in the property. The respondent is alleged to have migrated to Pakistan and the share of the respondent in terms of an order dated 13. 08. 1954 of the Custodian was declared as an evacuee property. The petitioners denied ever paying rent to the respondent and it was stated that the rent was paid to Mohd. Aziz for which rent receipts were issued. The petitioners had not attorned to the respondent as tenant. ( 3 ) THE petitioners also claimed that the property was let out both for residential and commercial purposes and was being used as such since the inception of the tenancy. Four hand-pressed machines were installed in the tenanted premises and the property was being used for manufacturing Bunda Balies (ear tops and ear rings ). ( 4 ) THE respondent claimed that Nazhat Bi Khatoon was also a tenant besides the petitioners being their sister. The extent of the tenanted premises was also denied as it was claimed that the tenanted premises comprised of one room, one bathroom, one kitchen and courtyard. The petitioners were also stated to be using the W. C. In 1989, a suit was filed by the respondent against some of the petitioners wherein the tenancy premises were stated to be as described. ( 5 ) THE petitioners, in fact, denied almost every aspect since the bona fide of the requirement was denied. It was alleged that there was alternative suitable residential accommodation, the ownership was denied, the partition deed was alleged to be a sham document and the extent of the family was also denied. The ECHO is on. eldest daughter of the respondent was stated to have been married before filing of the petition and that her mother-in-law had died a number of years ago. It was also alleged that the respondent, her husband, her three sons and her daughter were in occupation of three big rooms, latrine, bathroom and kitchen on the first floor of property No. 7832, Nai Basti, Bara Hindu Rao, Delhi. A Chhajja of the width of 2 ft. outside the room of the first floor of that property was stated to be included in the room subsequently and was in possession of the respondent. A Chhajja of the width of 2 ft. outside the room of the first floor of that property was stated to be included in the room subsequently and was in possession of the respondent. There were two shops on the ground floor, out of which, one was stated to be in possession of the respondent and her sons and the other had been let out. The brother of the husband of the respondent was stated to have a separate accommodation and was living separately. The younger brother of the husband of the respondent was stated to be living with the elder brother. The petitioners further alleged that the respondent had filed an eviction petition against another tenant Mohd. Sultan, who was in possession of one room and terrace on the first floor and one room on the second floor of property No. 4927-28, Gali Darzian, Bara Hindu Rao, Delhi in which a compromise was reached and the petition was dismissed as withdrawn on 16. 10. 1998 on the rent being increased from Rs. 27. 50 per month to Rs. 300/- per month. The legal representatives of the tenant therein were stated to have been granted permission for further construction. The respondent was also alleged to have reconstructed property No. 7832 in place of the old one with there being two shops on the ground floor, one big hall on the first floor, two rooms set each on the second floor, third floor and fourth floor besides kitchen, bathroom, stairs and latrine in the property and the construction was stated to have been carried out in 1999-2000. All the allegations made by the petitioners were disputed by the respondent. ( 6 ) THE Additional Rent Controller (for short, 'arc') after considering the testimony of the witnesses found in favour of the respondent and eviction order was passed in respect of the premises shown in red in the site-plan Ex. AW 1/2 and the petitioners were granted six months time in terms of the said order dated 16. 07. 2003 to vacate the suit property. The petitioners aggrieved by the said order have filed the present revision petition. ( 7 ) A perusal of the impugned order shows that the ARC has gone into each of the issues in depth and considered the necessary ingredients before the eviction proceedings on grounds of bona fide requirement can be allowed. 07. 2003 to vacate the suit property. The petitioners aggrieved by the said order have filed the present revision petition. ( 7 ) A perusal of the impugned order shows that the ARC has gone into each of the issues in depth and considered the necessary ingredients before the eviction proceedings on grounds of bona fide requirement can be allowed. ( 8 ) THE partition deed dated 13. 07. 1987 was proved as Ex. AW 1/3, which showed that the portion marked in red as per Ex. PW 1/2 fell to the share of the respondent. The areas were clearly defined in the partition deed. The document is a registered one. In view thereof, the ownership of the respondent was established. The trial court noticed that the present proceedings could not be treated as title suit and even if at some stage of time the property was declared evacuee property to the extent of the share of the respondent as per the order of the Custodian passed in 1954, the other legal representatives of the late father of the respondent had agreed to give a particular portion of the property to the respondent as per the partition deed. ( 9 ) IN my considered view, there can be no doubt that eviction proceedings are not title cases and mere denial of ownership by a tenant would not suffice. The title of the predecessor-in-interest of the respondent was not in dispute as the predecessor-in-interest of the petitioners was inducted as a tenant by him. The shares were divided in 1987 between the legal representatives. The trial court ECHO is on. also rightly disbelieved that the partition deed was only created to file an eviction proceedings as apart from any other reason, the eviction petition was filed 9 years after the partition. ( 10 ) THE issue of letting purpose was considered by the trial court and it was found that the property was residential and the area where it is located is also residential. The petitioners, who were in large nos. , could not be said to be residing in one room and carrying on business in the other. In fact, the stand of the petitioners was that really there was only one room and if that be so, it would imply that in one room, 13 people were residing and carrying on business. The petitioners, who were in large nos. , could not be said to be residing in one room and carrying on business in the other. In fact, the stand of the petitioners was that really there was only one room and if that be so, it would imply that in one room, 13 people were residing and carrying on business. Admittedly, the petitioners were residing in the tenanted property and not elsewhere. There was no document placed on record or any registration for any commercial activity and the trial court, thus, rightly rejected the fallacious plea of a residential-cum-commercial use of the suit property. ( 11 ) THE accommodation where the respondent was residing at present was discussed along with her family size. The respondent has a husband, two daughters, out of which, one is married and three sons, who had attained majority by the time the petition came to be decided. The eldest son at that time was of marriageable age. Thus, the requirement of the respondent would be one bed room for herself and her husband, one bed room for her unmarried daughter and three bed rooms for her three unmarried sons, who were all majors by then. This would be apart from the requirement of any store or sitting area. In the premises occupied by the respondent, on the ground floor of the property, there were shops; on the first floor, there was one big hall; and a room had been constructed on the second floor apart from the third floor. The total number of rooms in possession of the respondent was, thus, four rooms. It may be noticed that the property at house No. 7832 is constructed on a plot of 33 sq. yds. , though the petitioners alleged that the same was 100 sq. yds. The photographs filed by the petitioners themselves apparently showed that the construction was only up to third floor. No site-plan for the said property was placed on record. In view of the construction of one room on the second floor, the finding was reached about four rooms being in her possession. The accommodation, thus, was found to be hardly adequate for the respondent and her family members. Thus, there is no other alternative accommodation of sufficient extent, which can be said to be available with the respondent. In view of the construction of one room on the second floor, the finding was reached about four rooms being in her possession. The accommodation, thus, was found to be hardly adequate for the respondent and her family members. Thus, there is no other alternative accommodation of sufficient extent, which can be said to be available with the respondent. ( 12 ) THE last aspect, which was greatly emphasized by learned counsel for the petitioners, was that the ARC had come to an erroneous finding that there was nothing on record to show that the eviction petition filed by the respondent against the legal representatives of another tenant, Mohd. Sultan was withdrawn after the rent was increased. In this behalf, learned counsel referred to the testimony of AW 1 wherein it was recorded that the eviction petition was withdrawn after a compromise. The earlier rent was stated to be Rs. 27. 50 per month and the rent was stated to be increased to Rs. 300/- per month. The only question is whether this fact alone can be said to reach a conclusion that the eviction petition of the respondent was not bona fide. There is no cross- examination as to the reason for the increase of rent and this is relevant as the allegation of the petitioners is that there was permission granted to the legal heirs of the tenant to carry out some further construction. The witness had specifically denied that any security deposit was taken from the legal representatives of the tenant. It is possible that during a protracted ECHO is on litigation, some settlement may be arrived at between the legal heirs of the deceased tenant and a landlord. This cannot defeat the rights of the landlord for all times to come to seek an eviction of any other tenant more so when in the eventuality of a landlord succeeding and not occupying the property or re- letting it out or dealing with the same within a stipulated time bar, the tenant has the option to move the ARC to re-occupy the property. The Legislature in this behalf has protected the possibility of abuse by a landlord. ( 13 ) LEARNED counsel for the respondent, in fact, pleaded that since the year 1987, the petitioners have not been paying any rent at all. The Legislature in this behalf has protected the possibility of abuse by a landlord. ( 13 ) LEARNED counsel for the respondent, in fact, pleaded that since the year 1987, the petitioners have not been paying any rent at all. ( 14 ) IN view of the aforesaid position, I do not find any erroneous or improper exercise of jurisdiction by the ARC to call for any interference. ( 15 ) IN the end, it may be noticed that the arguments were concluded on 27. 07. 2006 and when the reasons were to be recorded for dismissal of the petition, learned counsel for the petitioners had taken some time to obtain instructions as to whether the petitioners would be willing to vacate the tenanted property on grant of time or would like to take recourse to further legal remedy available to them in accordance with law. Learned counsel today stated that the petitioners are not willing to give any undertaking to vacate the property and would prefer to take recourse to further legal remedy. The petition is accordingly dismissed leaving the parties to bear their own costs.